Millennium Goes to War with DEC, Asks FERC to Overrule

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In an effort to avoid more New York DEC stall tactics, Millennium asks FERC to issue the Notice to Proceed so the pipeline can be completed on time.

On Aug. 30, the New York Dept. of Environmental Conservation (DEC) issued a letter to FERC and Millennium Pipeline denying Millennium’s request for a water permit to build a 7.8 mile pipeline spur from the main Millennium Pipeline to a natural gas power plant under construction in Orange County. In their rejection, the DEC claimed that FERC’s review of the power plant project (that the pipeline will feed) is deficient based on a recently-decided court case about a pipeline project in Florida. Since the project the pipeline would feed is deficient (in DEC’s view), so too is the pipeline that feeds it.

A few weeks later, in September, FERC fired back by overruling NY DEC and granting the project permission to proceed without NY approval. On Friday (Oct.) the 13th, the DEC filed a petition for rehearing with FERC, the first step in a situation that is sure to end up in court. The DEC wants FERC to hold up on any further action with the pipeline project until their appeal is heard.

Millennium doesn’t want to wait. In an escalation of its now outright war against the DEC, Millennium filed a request last Friday requesting FERC proceed by issuing a Notice to Proceed with construction of the pipeline. It needs to get built and completed by February, in time to begin flowing natural gas to the electric generating plant that is under construction and will be done by then.

Editor’s Note: The money paragraphs of the letter are as follows and speak for themselves:

The Commission issued Millennium a certificate of public convenience and necessity to construct and operate the Project more than eleven months ago.8 The certificate is conditioned upon Millennium documenting to the Commission that it has “received all authorizations required under federal law (or evidence of waiver thereof).”9 At the time Millennium filed the July NTP Request, the only federally-required authorization Millennium had not yet received was its overdue CWA Section 401 Water Quality Certification from NYSDEC.

On September 15, 2017, the Commission issued the Declaratory Order, stating that “[NYSDEC], by failing to act within the one-year timeframe required by the CWA, waived its authority to issue or deny a water quality certification.”10 With the CWA Section 401 Water Quality Certification requirement found to have been waived by the Commission, Millennium has all federally-required environmental permits, or waiver thereof, necessary for construction of the Project. As Attachment A hereto, Millennium updates the permit table that was included with Millennium’s July NTP Request and which lists all the federal permits and clearances required for Project construction activities.